BILL ANALYSIS Ó
AB 2231
Page 1
Date of Hearing: June 20, 2012
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Cameron Smyth, Chair
AB 2231 (Fuentes) - As Amended: May 31, 2012
SUBJECT : Sidewalks: repairs.
SUMMARY : Prohibits the repeal of a local ordinance placing
responsibility for sidewalk repair on a city, county, or city
and county unless the repeal is subsequently ratified by a
majority vote of the public. Specifically, this bill :
1)Requires that if a city, county, or city and county
(hereinafter, city or county) has an ordinance requiring that
city or county to repair sidewalks, a repeal of that ordinance
shall become effective only if the repealing ordinance is
approved by a majority of voters in a consolidated or general
election.
2)Makes findings and declarations that these provisions
constitute a matter of statewide concern, and shall therefore
apply to charter cities and charter counties. Such provisions
shall supersede any inconsistent provisions in the charter of
any city or county.
EXISTING LAW :
1)Requires the owners of lots or portions of lots fronting on
any portion of a public street or place to maintain any
sidewalk in such condition that the sidewalk will not endanger
persons or property and maintain it in a condition that will
not interfere with the public convenience in the use of those
works or areas, except as to those conditions created or
maintained by persons other than the owner.
2)Requires the superintendent of streets, as defined, to provide
specified notice to the owner or person in possession of the
property fronting on that portion of the sidewalk out of
repair or pending reconstruction, to repair the sidewalk.
Under existing law, if the repair is not commenced within two
weeks after the notice has been provided, the superintendent
of streets shall make the repair and the cost of the repair
shall be imposed as a lien on the property.
AB 2231
Page 2
3)Requires voter approval in order for a number of actions to
take place, including:
a) An amendment to the Constitution;
b) The establishment or increase in various types of local
taxes or fees;
c) The issuance of certain bonds;
d) The establishment of certain special districts; and,
e) The sale of a public utility.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, if the Commission on State Mandates determines that
this bill is a reimbursable mandate, the state will be liable
for the costs of the election and sidewalk repairs required to
be made between the decision to seek the election and the actual
election date.
COMMENTS :
1)This bill would prohibit the repeal of a local ordinance
requiring a city or county - including charter cities and
charter counties - to repair sidewalks unless the repeal is
ratified by a majority vote of the public before it takes
effect. This could potentially prevent cities like Los
Angeles with such ordinances from shifting financial
responsibility for sidewalk repairs onto adjacent property
owners should the city council vote to do so. This measure is
author-sponsored.
2)Under current law, the responsibility for repairing sidewalks
resides with the owner of the adjoining property, unless the
dangerous condition was created by another person. The
locality's superintendent of streets is empowered to notice
the adjoining property owner of the damage, and if it remains
unrepaired after two weeks, the city or county may commence
repairs and impose the cost as a lien on the property. Legal
liability for injuries caused by a broken sidewalk will differ
based on the individual circumstances.
The author states that "in October 2011, the Los Angeles City
Council angered homeowners by considering a plan to repeal a
AB 2231
Page 3
1974 ordinance that made the city responsible for sidewalk
repair. For the last 30 years, the City assumed
responsibility for most sidewalk repairs, but has not
maintained the sidewalks or the trees. Almost half of L.A.'s
sidewalks are in some state of disrepair, mostly due to tree
roots pushing through concrete and causing cracks."
The author's office has identified seven cities that it
believes have sidewalk ordinances that may be affected by the
provisions of this bill: Los Angeles, Oakland, Berkeley, Half
Moon Bay, Placentia, Burlingame and Redlands.
3)According to a November 2011 Los Angeles Times article, the
City of Los Angeles voted to assume responsibility for
sidewalk repair in 1973, allocating $2 million for the work.
Federal money for that work ran out in 1976. Since 2000, the
city has spent about $95 million to replace 550 miles of
sidewalk. According to an October 20, 2011 report by the
Daily News, the City of Los Angeles has nearly 11,000 miles of
sidewalks, about 4,700 miles of which still need repair. The
Los Angeles Times reports that it can cost roughly $250,000 to
$300,000 to repair a mile of sidewalk.
According to a Daily News article dated October 20, 2011,
between "$4 million and $6 million is spent İby the City of
Los Angeles] every year on liability claims, and the total
cost estimate to repair the sidewalks İin Los Angeles] is
between $1.2 billion and $1.5 billion."
A bond measure to fix the city's sidewalks was put before the
voters in 1998, but was rejected. A May 2010 article by the
Los Angeles Times stated that "the city spends $3 million to
$5 million a year" to defend or settle cases arising from
sidewalk-related "trip and fall" injuries.
Beginning in 2010, the Los Angeles City Council began
considering a variety of proposals for addressing the backlog
of broken sidewalks, including a requirement on home owners to
make repairs, as well as requiring repairs as a condition to
the close of escrow when a home is being sold, and continuing
the current policy of making temporary repairs using asphalt.
According to the author's office, the city council has not yet
taken action on this matter, but public discussion and debate
over the matter continue.
AB 2231
Page 4
4)An earlier version (February 24, 2012) of this bill was heard
in the Assembly Local Government Committee on April 18, 2012,
where it was approved on a 7-0 vote. That version shifted
financial responsibility and legal liability for sidewalk
repairs to the relevant locality while prohibiting special
assessments for costs, but contained no voter ratification
requirement. After being amended on April 23 to delete the
shift in legal liability to local governments, and further
amended on May 25 to replace the shift in financial
responsibility with the voter ratification requirement, the
measure passed out of the Appropriations Committee suspense
file. The measure later failed passage on the Assembly Floor
on
May 30, 2012. After reconsideration was granted, the bill was
amended to remove the prohibition on assessment and
re-referred back to the Assembly Local Government Committee
pursuant to Assembly Rule 77.2.
5)According to the author, "AB 2231 simply ensures that the
public has a say if İc]ities or İc]ounties are trying to
change their ordinances on sidewalk repair and make homeowners
foot the bill. Particularly during difficult economic times,
it seems that local governments are putting an undue burden on
homeowners, by trying to pass on the financial responsibility
for damage caused by trees that were often planted by the
government."
The California Association of Realtors supported an earlier
version of the measure, contending that "California's older
neighborhoods are suffering from high levels of sidewalk
disrepair due to trees planted by local governments?AB 2231
(Fuentes) rightfully stops local governments from shirking
responsibility for these sidewalks and protects property
owners from huge repair and legal costs for damages they did
not produce."
6)The League of California Cities and the California State
Association of Counties oppose the current version of the bill
primarily because of its impact on local financial
decision-making: "Local governments make every attempt to fund
sidewalk repair, and have used a variety of funds to pay for
sidewalk repair including redevelopment funds, federal
Community Development Block Grants, gasoline tax revenues, and
Safe Routes to Schools programs. Unfortunately, all of these
AB 2231
Page 5
funds are either obsolete or in jeopardy of significant cuts.
If cities and counties are unable to find another solution,
which sometimes may include updating an ordinance or asking
property owners to share the cost of repair, sidewalks will
simply remain in a state of disrepair?The ability for city
councils and county boards of supervisors to decide how best
to balance infrastructure needs is absolutely critical given
shrinking resources available to local governments."
The City of Los Angeles opposes the bill in its current form,
stating "İs]idewalk repair is clearly a matter of local
concern and should remain so. This measure disrupts the local
legislative process and substitutes the state's legislative
interests. The City of Los Angeles
has a deficit of $238 million and its budget is already
extremely limited?While well-intentioned, AB 2231 would tie
our hands by making it difficult for us to address the ongoing
issue of deferred maintenance on sidewalks by enacting
unnecessary restrictions in state law."
7)It should be noted that, because the voter ratification
required by this bill applies only to the repeal of a sidewalk
repair ordinance, amendments to an existing ordinance that
fall short of outright or constructive repeal may not require
voter approval.
8)The Committee may wish to ask the author to address the policy
justification for imposing a voter ratification requirement on
what has traditionally been a matter of local concern.
As noted above, California requires voter approval of
legislative action in limited cases, such as constitutional
amendments, creation or increase of certain taxes or fees,
bond issuances, establishment of certain special districts,
and the sale of a public utility. The Legislature also
previously considered a measure İAB 2892 (Swanson)] in 2008
that would have imposed a two-thirds voter ratification
requirement on any state decision to spray an aerial pesticide
in an urban area. The Agriculture Committee analysis for that
bill noted that "İs]ubjecting rational government action to a
direct vote of the people will make it very difficult to
respond in a timely manner. It will also set a legislative
AB 2231
Page 6
precedent that could lead to other direct democracy
decision-making."
The Committee may wish to discuss whether or not the imposition
of a local ratification requirement for sidewalk repair is in
keeping with its understanding of the municipal affairs
doctrine, and whether or not it sets a precedent for imposing
similar requirements in other areas of local decision-making.
9)In 2008, the Assembly Local Government Committee heard AB 1985
(Strickland), which would have repealed current laws regarding
sidewalk repairs, and held liable the owner of the property on
which the sidewalk is located for all repairs and maintenance
of the sidewalk. That bill failed passage (2-5) in the
Committee on April 9, 2008.
10)This bill is keyed a state mandate which means that if the
Commission on State Mandates deems this a reimbursable
mandate, then the state could be responsible for the local
election costs associated with this bill.
11)Support arguments : According to the California Business
Properties Association, "AB 2231 will simply assure that
before a local government can shift the responsibility onto
private property owners, those that are being asked to bear
the new costs of liability, have a chance to voice their
opinion about the shift in policy."
Opposition arguments : According to the League of California
Cities, "İt]his bill creates a dangerous precedent, undermines
the role of city councils and county boards of supervisors,
and creates a disincentive for local governments to assist
with the costs of sidewalk repair."
REGISTERED SUPPORT / OPPOSITION :
Support
Apartment Association, California Southern Cities (current
version)
California Business Properties Association (current version)
AB 2231
Page 7
East Bay Rental Housing Association (current version)
NORCAL Rental Property Association (current version)
Silver Lake Neighborhood Council (current version)
California Association of Realtors (2/24 version)
California Apartment Association (2/24 version)
Opposition
California State Association of Counties (current version)
City of Camarillo (current version)
City of Concord (current version)
City of Lakewood (current version)
City of Los Angeles (current version)
City of Palmdale (current version)
City of Rancho Cucamonga (current version)
City of Torrance (current version)
League of California Cities (current version)
City of Burbank (2/24 version)
City of Pasadena (2/24 version)
City of San Jose (2/24 version)
City of Sunnyvale (2/24 version)
County of San Joaquin (2/24 version)
County of Ventura (2/24 version)
Glendale City Employees Association (2/24 version)
Organization of SMUD Employees (2/24 version)
San Bernardino Public Employees Association (2/24 version)
San Luis Obispo County Employees Association (2/24 version)
Santa Rosa City Employees Association (2/24 version)
Analysis Prepared by : Hank Dempsey / L. GOV. / (916) 319-3958